Lucas Mohan v The Queen Elizabeth Hospital Board
| Jurisdiction | Barbados |
| Judge | Madam Justice Barbara Cooke-Alleyne |
| Judgment Date | 12 November 2021 |
| Neutral Citation | BB 2021 HC 055 |
| Docket Number | Claim Suit No: 1333 of 2018 |
| Court | High Court (Barbados) |
The Hon. Madam Justice Barbara Cooke-Alleyne QC Judge of the High Court (Ag.)
Claim Suit No: 1333 of 2018
IN THE SUPREME COURT OF JUDICATURE
HIGH COURT
CIVIL DIVISION
Mr. Tariq Khan, Attorney-at-Law for the Claimants.
Mr. Ivan Walters, Attorney-at-Law for the Defendant.
This application was brought by Defendant who sought the permission of the Court to rely on the opinions of four (4) medical experts in at least three disciplines in relation to the claim that the First Claimant's neurological injuries were brought about by the negligent management of his birth by the said Defendant. This Court has been asked to determine whether the Defendant's counsel should be limited in the number of medical expert witnesses to be called to give evidence. In answer to that question, this court has granted permission for three (3) medical experts to be allowed to give evidence in this matter. The reasons for this decision are given below.
The First Claimant was bom on the 27 th of September 2013 at the Defendant's institution. He alleged, through his next friend, that the Defendant's negligent treatment before, during and after his birth has led to his injuries. The First Claimant suffers from severe spastic cerebral palsy, complete absence of speech or movement, epilepsy among other health challenges allegedly sustained by his injuries. Counsel for the Claimants stated that at previous case management hearings there was discussion about limiting the number of expert witnesses to be called. However, this Court noted that no Order was made in respect of the number of experts that should be called.
The Defendant wholly disagreed with the Claimants' suppositions that it is responsible for the First Claimant's neurological injuries and that those injuries are a result of the Defendant's negligence before, during and after the birth of the First Claimant The Defendant submitted that it would be taking the necessary experts to support its defence from a pool of available experts, inclusive of the relevant specialist and subspecialists. The Defendant contended that these experts could provide the Court with pertinent and cogent evidence in relation to the case at bar for the Court to make a fair decision.
The Defendant's counsel vividly expressed that without the use of requested medico-legal expert opinions, its defence would be severely hampered. Defence counsel, Mr. Walters, contended that these expert witnesses would assist in resolving the disputed facts between the parties and clarify the evidence. He further opined that these experts would particularize the pertinent issues in the case at bar with regards to duty, breach of duty and causation.
The Defendant submitted that due to the complexity and multidimensional nature of the interface of medicine and law, there is a need for multiple experts to provide the Court with the necessary assistance it may require. Counsel further argued that the Court must be very cautious in dealing with medicolegal cases, such as the case at bar, where there are allegations of serious injuries without any proper medical explanation. He further stated that such an explanation can be channelled to the Court by a medico-legal interdisciplinary approach.
The Defence counsel submitted that where a Claimant alleges clinical negligence, the Claimant has both the legal and evidential burden to prove clinical negligence. Whereas the Defendant would ordinarily have only an evidential burden. However, if the Defendant wished to refute the evidence called by the Claimant, then it may adduce so much relevant and probative evidence to do so.
Counsel contended that the medico-legal experts would be expected to provide answers to the salient question whether in their professional opinion the management of the First Claimant's birth was negligently handled by the Defendant. To support his contention about the importance of multiple experts, counsel cited the Court of Appeal case of Boyce v Lorde et al BB 2011 CA 18 at paragraph [38], where Mason JA cited Lord Browne-Wilkinson in Bolitho v City and Hackney Health Authority 1997 4 ALL ER 771:
“Legal authorities indicate that the assessment of medical risk and benefits is a matter of clinical judgment which a judge would not be able to make without expert evidence.”
The Defendant's Counsel submitted that the Defendant would require the medico-legal expert opinion of an Obstetrician, Paediatrician-General, Paediatric-neurologist and Paediatrician-radiologist. These experts would advise on causation from a management perspective in relation to the salient question(s) in the case at bar. Counsel further submitted that these specialists are qualified and experienced to address the issues that arise in the context in relation to their specialities and or subspecialties. He also opined that they can competently advise on whether there was negligence or no negligence on the part of the Defendant.
The defence specified that the Obstetrician would advise on the management and causation from an obstetrics perspective. On the other hand, the expert opinions of a Paediatric-neurologist and Paediatric-radiologist would advise on the causation from a neurological and/or radiological perspective. They would also advise on the timeline when the alleged insult would have commenced on the First Claimant in relation to the pertinent question of negligence.
The Defendant humbly submitted that the witnesses were all medical practitioners with significant qualification and experience. Furthermore, they would competently provide their expert opinion based on the medical records and the history of the First Claimant's birth. He had annexed the Curriculum Vitae of the proposed experts. He asserted that they have no personal knowledge of the facts of this case and as such they were devoid of any incestuous connections with the medical practitioners and midwives who had the responsibility for the First Claimant's birth. As a result, the Court should grant permission for the Defendant to use their evidence at the ensuing trial of the case.
Counsel further contends that there was no good reason why permission should not be granted for the Defendant to use these witnesses. He believed that their expert testimony and their medical reports would independently assist the Court in its determination of the question of breach and causation.
12] Counsel for the Defendant further submitted that the multiple expert witnesses were required to advise the Defendant generally on whether the conduct of its servants and/or agents fell below the standard of a reasonable, respected, and responsible body of medical opinion. The Court may use this evidence to determine whether this body of medical opinion can withstand logical analysis to ground liability in clinical negligence in relation to the question whether the Defendant's servants and or officers were negligent in the case at bar.
Counsel submitted that Part 32 of the CPR seeks to establish the position, the responsibility and the duty of an independent medico-legal expert witness to assist the Court impartially on the matters relevant to his expertise. This duty overrides any obligation to the party by whom he is instructed and/or paid; a duty with which the medico-legal expert must comply.
Counsel sought to reiterate that the CPR Part 32.3 makes it abundantly clear that the Court is to whom the medico-legal expert is addressing and to whom he owes his ultimate responsibility and not to the party instructing him. Counsel further submitted if there is a conflict between the expert duties and his client, the expert must seek the direction from the Court, not the party who employs him.
15] Defence Counsel strongly submitted that the medico-legal expert must declare to the Court that he is aware of his overriding duty which is owed to the Court and not to the party who instructs and pays him. Also, he must state that his expert evidence is professional, objective, and unbiased. Finally, the expert must declare that he knows of no conflict of interest of any kind, other than any which he has disclosed in his report.
16] Counsel submitted that the medico-legal expert must endeavour to include in his report those matters of which he has knowledge of or which he has been made aware that might adversely affect the validity of his opinion. Furthermore, the medico-legal expert must not, without forming an independent view, include or exclude anything which has been suggested to him by others, including instructing lawyer. Counsel stated that the medicolegal expert opinion should also contain a statement of truth and must conclude with the affirmation that the expert understands his duty to the Court and that he has complied with that duty.
The Defendant's Counsel stated that Part 32.6 of the CPR requires that a party who intend to instruct expert witnesses for the purpose of relying on their medico-legal opinion at the trial must seek the Court's permission before calling the witness or putting in the report of an expert witness. Counsel further expressed that the Rule 32.6(2) prescribed that the Court's permission is to be given at a case management conference.
Counsel submitted that the Court has complete control over the evidence to be put before it. This general principle is stated in relation to expert evidence. The expert report cannot be put in evidence without the Court's permission. The party seeking permission will have to identify the relevant field of evidence and, where practicable, the name of the expert on whose evidence that...
To continue reading
Request your trial